NY.gov Portal State Agency Listing

 

July 21, 1997

 

 

 

 

Mr. Peter Henner, Esq.
P.O. Box 326
Clarksville, NY 12041-0326

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Henner:

As you are aware, I have received your letter of June 26.
Please accept my apologies for the delay in response.

According to your correspondence, on June 17, you addressed a
request for records to the records access officer at the Albany
County Department of Public Works for certain records maintained by
the Department. In response, you were informed that "all Freedom
of Information requests must be filed through the Albany County
Clerk's Office", and you were advised to send your request to the
County Clerk. You have questioned whether a response of that
nature is appropriate.

From my perspective, the response that you received from the
Department of Public Works was not consistent with either the
letter or the spirit of the law.

By way of background, §89(1) of the Freedom of Information Law
requires the Committee on Open Government to promulgate regulations
concerning the procedural implementation of that statute (21 NYCRR
Part 1401). In turn, §87(1) requires the governing body of a
public corporation to adopt rules and regulations consistent those
promulgated by the Committee and with the Freedom of Information
Law. Further, §1401.2 of the regulations provides in relevant part
that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall
designate one or more persons as records
access officer by name or by specific job
title and business address, who shall have the
duty of coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to
the public from continuing to do so."

Based on the foregoing, I believe that the records access officer
has the duty of coordinating responses to requests.

Section 1401.2(b) of the regulations describes the duties of
a records access officer and states in part that:

"The records access Officer is responsible for
assuring that agency personnel:

(1) Maintain an up-to-date subject matter
list.
(2) Assist the requester in identifying
requested records, if necessary.
(3) Upon locating the records, take one of
the following actions:
(i) make records promptly available for
inspection; or
(ii) deny access to the records in whole or
in part and explain in writing the reasons
therefor.
(4) Upon request for copies of records:
(i) make a copy available upon payment or
offer to pay established fees, if any; or
(ii) permit the requester to copy those
records.
(5) Upon request, certify that a record is a
true copy.
(6) Upon failure to locate the records,
certify that:
(i) the agency is not the custodian for
such records; or
(ii) the records of which the agency is a
custodian cannot be found after diligent
search."

As stated above, the records access officer must "coordinate"
an agency's response to requests. Therefore, I believe that
requests may be made to County officials generally. In my opinion,
when an official receives a request, he or she, in accordance with
the direction provided by the records access officer, must respond
in a manner consistent with the Freedom of Information Law, or
forward the request to the records access officer.

Further, I believe that the Department's response
unnecessarily delayed the issuance of a determination to grant or
deny your request.

I hope that I have been of assistance.

 

Sincerely,

Robert J. Freeman
Executive Director

cc: Hon. Thomas G. Clingan, County Clerk
Michael V. Franchini, Deputy Commissioner

RJF:tt